A Demonstration On The Legal Status Of Taiping Island

In the 2013 South China Sea Arbitration Award,as a result of the ambiguous of article 121(3)of the United Nations Convention on the Law of the Sea,the Permanent Court of Arbitration(PCA)changed the legal status of Taiping Island——the largest maritime feature in the Spratly Islands——from a fully entitled island into a rock.The tribunal further concluded that none of the high-tide features in the Spratly Islands have the capacity to claim rights beyond the scope of the territorial sea.Tracing origins,the sphere of the application of article121(3)is not clearly established,giving an opportunity for tribunal to interpret arbitrarily.Article 121 is the only provision concerning with the island regime.Paragraph(1)stipulates four geographic elements include naturally formed,land area,surrounding by water and high-tide feature.The term “human habitation” and “economic life” constitute the social factors of the island.Features which not satisfied with social elements will be regarded as “rocks”.After analyzing the current mainstream theories and taking into account the development of society,a strict interpretation of maintaining a “stable human community” should be adopted when judging a feature is inhabited or not.As for the economic element,not only refers to the island itself,but also contains the resource in its territorial sea and subsoil.The words “or” as well as “cannot” play a critical role to decide the relation between the two social elements.It means that only one of these qualifications must be met to remove the feature from the restriction of rocks.And it does not require that the island must have an actual habitation and economic activities,only that habitation is possible or have economic potential.The tribunal also deconstructed several key words of the article 121(3).Except for using too strict standards in explaining “economic life”,the rest basically did not violate the meaning of the clause itself.But the real criticism,on the one hand,lies in the arbitration conclusion was made without corresponding precedents support.Because the obvious subjectivity of social elements,there is no unified and concrete criteria to estimate it.In the past maritime disputes,the court preferred to judge the sovereignty or delimitation issues rather than the nature of maritime features.However,this case the tribunal insisted on addressing the legal status of Taiping Island despite it is beyond the Philippines' 15 Submissions,seriously undermined the legality and credibility of the judgement.On the other hand,the tribunal's biased adoption of historical materials has caused it to ignore the “capacity” which emphasized by article 121(3).In fact,Chinese and foreign historical materials,such as the “Roadbook” and “China Sea Directory”,have proved that there are sufficient freshwater,crops and traces of human community life on Taiping Island.Mr.Han Zhenhua's “Compilation of Historical Materials of the South China Sea Islands” records the economic activities that Chinese fishermen have long carried out in the Taiping Island and its surrounding waters.Combined with the amicus curiae brief submitted by the Taiwan authorities and the human activities since the recovery of Taiping Island in 1940 s,all of the evidence adequately confirms the capacity of the Taiping Island.Because of the important geographic position,rich resources and navigation resources,the South China Sea has a significant position on China's national security and strategy implementation.The Taiping Island should be taken great priority as its central location.As a fully entitled island,it can not only enjoy all the maritime entitlements but also plays an important role in maritime delimitation.To deal with future crises,one proposal is to provide a delimitation solution in accordant with the Taiping Island's legal status,the other is through it to exert a favorable effect in the delimitation process.The Spratly Islands are currently occupied by several countries such as Vietnam,Philippines,and Malaysia.Thus,one of the responses is to make legal preparations as sufficient as possible.